Subject to the limitations and disclaimers contained in this limited warranty (this “Warranty”), Bearing Engineers, Inc. d/b/a Motion Solutions (“Motion Solutions”) warrants to the original purchaser only (the “Purchaser”) that the products sold by Motion Solutions (the “Products”) will (i) conform to the specifications published in the catalog or as otherwise communicated to the purchaser in signed writing by a duly authorized representative of Motion Solutions and (ii) are free from defects in material and workmanship. This Warranty commences on the delivery of the Product to Purchaser and expires one (1) year from the date of delivery (the “Warranty Period”).
If Purchaser discovers a defect or failure in the Products covered by this Warranty during the Warranty Period, Purchaser must notify Motion Solutions in writing during the Warranty Period. Failure by Purchaser to give written notice of a defect or failure of the Products within the applicable time period shall be deemed an absolute and unconditional waiver of Purchaser’s claim for such defects or failures. If Motion Solutions receives Purchaser’s written notice of the defect or failure within the applicable time period and the Products are proven to be defective or have failed within the terms of this Warranty, Motion Solutions, shall, at its option and in its discretion and as Purchaser’s sole and exclusive remedy against Motion Solutions, either (x) repair the failure or defect, (y) replace the Products, or (z) provide a full refund of the purchase price. To the extent Motion Solutions decides to repair the Products, such repairs, including any associated parts and labor, will be performed at Motion Solutions’ facilities and at its expense; provided, however, all freight and related transportation costs to have the Products delivered to Motion Solutions must be prepaid by the Purchaser. In addition, Products repaired or replaced pursuant to this Warranty shall be warranted for the unexpired portion of the Warranty Period that applies to the Products being repaired or replaced. Service or repairs sold and performed by Motion Solutions after the Warranty Period (i) are not covered by this Warranty and (ii) may have their own warranty with a separate warranty period that will apply to such services or repairs.
This Warranty is (i) not transferable by Purchaser to any subsequent buyer or transferee of the Products and (ii) only enforceable by Purchaser and in no event or circumstance will a third party (including, without limitation, any customer, transferee, employee or agent of Purchaser) have any right, title or interest to assert any rights under this Warranty.
In addition to the disclaimers set forth herein, Motion Solutions does not warrant, and this Warranty does not cover or otherwise extend to, any defects, failures, losses, or damages caused by or otherwise due to: (i) failure to follow any directions, user manuals and precautions provided by Motion Solutions; (ii) failure to provide a suitable installation environment for the Products; (iii) misuse, mishandling, misapplication (including improper maintenance), accident, abuse, willful misconduct, negligence (other than Motion Solutions’), collision, improper installation (including use of unauthorized parts or attachments), normal wear and tear, abnormal use (including any use not originally specified by Motion Solutions for the Products or use of the Products in a manner other than those for which it was designed), modifications or alterations to the Products not approved in advance and in a writing signed by an authorized representative of Motion Solutions; (iv) repairs performed by anyone other than Motion Solutions or an authorized representative of Motion Solutions; or (v) any other cause or circumstance outside of Motion Solutions’ control. This Warranty does not cover damages caused during the shipment of the Products or delivery delays. All claims for damages during shipment or delivery delays must be resolved with the applicable freight carrier.
THE WARRANTY SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE PRODUCTS AND IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, EXPRESSED, STATUTORY OR IMPLIED BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY MOTION SOLUTIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. EXCEPT AS EXPRESSLY STATED IN THIS
WARRANTY, AND NOTWITHSTANDING ANY ORAL STATEMENT TO THE CONTRARY, WHETHER MADE PRIOR TO, CONTEMPORANEOUS WITH, OR AFTER PURCHASER’S PURCHASE OF THE PRODUCT, MOTION SOLUTIONS MAKES NO OTHER WARRANTIES REGARDING THE QUALITY OF THE PRODUCTS OR THE MATERIALS CONTAINED THEREIN, AND MOTION SOLUTIONS EXPRESSLY DISCLAIMS ANY WARRANTIES OF DURABILITY, THAT THE PRODUCT WILL MEET ALL OF THE PURCHASER’S NEEDS OR THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE. THIS IS NOT A CONSUMER WARRANTY.
THIS WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS AND SUPERSEDES AND EXCLUDES ANY OTHER WARRANTY FOUND IN ANY DOCUMENT ISSUED OR DEEMED ISSUED BY PURCHASER TO MOTION SOLUTIONS (INCLUDING, WITHOUT LIMITATION, PURCHASER’S GENERAL TERMS AND CONDITIONS OF PURCHASE, IF ANY). ANY DIFFERENT OR ADDITIONAL TERMS OF WARRANTY FOR THE PRODUCTS PROPOSED BY PURCHASER ARE EXPRESSLY REJECTED BY MOTION SOLUTIONS, DO NOT APPLY TO THE PRODUCTS, AND ARE NOT BINDING ON MOTION SOLUTIONS UNLESS THERE IS A WRITTEN AGREEMENT SIGNED BY MOTION SOLUTIONS’ AUTHORIZED REPRESENTATIVE THAT EXPRESSLY ACCEPTS SUCH ADDITIONAL OR DIFFERENT TERMS.
LIMITATION OF LIABILITY
PURCHASER’S SOLE AND EXCLUSIVE REMEDY AGAINST MOTION SOLUTIONS, AND MOTION SOLUTIONS’ SOLE OBLIGATION TO PURCHASER FOR ANY AND ALL CLAIMS ARISING OUT OF OR OTHERWISE RELATED TO THIS WARRANTY SHALL BE LIMITED TO MOTION SOLUTIONS’ REPLACING OR REPAIRING THE APPLICABLE PRODUCTS OR PROVIDING A REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL MOTION SOLUTIONS’ LIABILITY TO PURCHASER OR ANY THIRD PARTY EXCEED THE PURCHASE PRICE OF THE PRODUCTS THAT ARE DEFECTIVE. IN NO EVENT SHALL MOTION SOLUTIONS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS WARRANTY OR OTHERWISE RELATING TO THE USE OR INABILITY TO USE THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGES, CLAIMS OF CUSTOMERS OR THIRD PARTIES, COST OF ANY SUBSTITUTE EQUIPMENT OR FACILITIES, ATTORNEY’S FEES OR ANY OTHER RELATED COSTS OR EXPENSES, ANY DIRECT OR INDIRECT LOSS OF PROFITS, REVENUE, OR BUSINESS OPPORTUNITY, DOWNTIME, DELAY DAMAGES OR ANY OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE BY MOTION SOLUTIONS OR MOTION SOLUTIONS WAS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER STATED IN THIS WARRANTY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PURCHASER AND MOTION SOLUTIONS AND APPLY REGARDLESS OF WHETHER ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE. Each of Motion Solutions and Purchaser agree that the statute of limitations with respect to this Warranty is, and all lawsuits or demands for breach of warranty must be commenced within, twelve (12) months following, and all claims under this Warranty will be deemed to have accrued on, delivery of the Product.
JURISDICTION AND GOVERNING LAW
This Warranty is governed under the laws of the State of California without reference to its choice of law rules. Any action by Purchaser to enforce this Warranty must be brought in the state and federal courts sitting in Orange County, California. By purchasing the Products, Purchaser accepts this Warranty and expressly consents to the sole and exclusive jurisdiction of the foregoing courts.